State v. Sanchez

597 N.W.2d 361

257 Neb. 291

STATE of Nebraska, appellee, v. Dan SANCHEZ, appellant.

No. S-98-660.

Supreme Court of Nebraska.

July 16, 1999.

Dave B. Eubanks and Maren Lynn Chaloupka, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., for appellant.

Don Stenberg, Attorney General, and Donald J.B. Miller for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Dan Sanchez appeals from his conviction of first degree sexual assault following a jury trial in the district court for Box Butte County. We conclude that the district court erred in admitting testimony regarding uncharged criminal acts occurring prior to the charged offense and, therefore, reverse, and remand for a new trial.

I. FACTS AND PROCEDURAL BACKGROUND

Sanchez was charged under Neb.Rev. Stat. § 28-319(1)(c) (Reissue 1995) with sexually assaulting 13-year-old A.S. at some time during the period of December 25, 1996, to February 24, 1997. On June 16, 1997, A.S. reported the incident to her mother, who notified law enforcement authorities on the same date. Prior to trial, Sanchez filed a notice of intent to offer evidence of A.S.' prior sexual behavior pursuant to Neb.Rev.Stat. § 28-321 (Reissue 1995) and requested an in camera hearing on this issue. Also prior to trial, the State filed a notice of its intent to offer "other acts" evidence pursuant to Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 1995), in order to establish that Sanchez had engaged in sexual contact, including penetration, with his biological daughters and former wife while they were under the age of 16. Sanchez filed motions in limine to exclude this evidence pursuant to Neb. Evid. R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1995).

1. Rule 404(3) Hearing

On April 16, 1998, the district court conducted a pretrial evidentiary hearing on the State's proposed offer of "other crimes" evidence as required by rule 404(3). At this hearing, the State called L.G., who had been married to Sanchez from 1976 until 1983, and Au.G. and A.G., children of this marriage.

Au.G., whose date of birth is May 16, 1980, testified that Sanchez sexually assaulted her repeatedly during a 2-week summer visitation in 1984 or 1985 at an apartment in Texas where Sanchez then resided. She testified that Sanchez fondled her and that on one occasion, she felt cold and pain in her vaginal area while Sanchez was on top of her. On cross-examination, Au.G. said she was confused when, approximately 1 to 2 months prior to the hearing, she reported that the incidents had occurred in Alliance, Nebraska. She further stated that memories of the assault came back to her in dreams and flashbacks.

A.G., whose date of birth is March 30, 1976, also testified that she was sexually assaulted by Sanchez when she was a young child but expressed uncertainty as to whether the events actually happened or were a part of a dream. L.G., whose date of birth is September 7, 1961, married Sanchez in 1976 when she was 14 years old. She testified that she first met Sanchez when she was 13 and had accompanied a friend, Sanchez' sister, to the Sanchez home after school. She was introduced to Sanchez, who was 22 years old at the time, and accompanied him to his room to view his sports trophies and awards. She stated that when Sanchez' sister left the room, he sexually assaulted her, achieving vaginal penetration. She testified that Sanchez subsequently subjected her to oral and vaginal penetration on multiple occasions prior to their marriage in 1976. When the marriage was dissolved in 1983, L.G. obtained custody of A.G. and Au.G., and Sanchez was given visitation rights. L.G. testified that when Au.G. told her of the molestation by Sanchez during the visitation in Texas, she attempted to obtain a court order terminating Sanchez' visitation rights but was unsuccessful in that effort. L.G. remarried, and in September 1985, Sanchez relinquished parental rights to Au.G. and A.G., who were adopted by L.G.'s new husband.

Sanchez called three witnesses at the pretrial hearing. Katie Sanchez, who was married to Sanchez from 1990 to 1998, testified that she was living in Garland, Texas, with Sanchez in 1985 and stayed with friends during a 2-week period when Sanchez' daughters came for a summer visit. However, she observed Sanchez with his children during this visitation and stated that the girls appeared happy. Sanchez' brother testified that he and his wife transported A.G. and Au.G. back to their home after a visitation with Sanchez in Texas in the summer of 1985. He stated that he did not notice anything unusual about their behavior during this trip other than that they were "fidgety," which he attributed to the fact that they were not familiar with his family. Sanchez' sister-in-law testified that nothing unusual happened during the journey. Sanchez' mother testified that L.G. came to their home "constantly" in 1975 to see Sanchez and that for the initial 2 months of this period, there was an open doorway with no door between Sanchez' room and the adjacent kitchen.

Sanchez also offered certain documentary evidence which was received by the court, including transcripts of depositions of L.G., Au.G., and A.G.; a videotape containing interviews of the same persons; and certain pleadings, motions, and orders from the proceedings in the district court for Box Butte County dissolving the marriage of Sanchez and L.G. and determining custody and visitation rights. On May 4, 1998, the district court entered an order granting the State's motion to present "other acts" evidence through the testimony of L.G. and Au.G., but denying the motion as to the testimony of A.G.

2. Section 28-321(2) Hearing

Immediately following the rule 404(3) hearing, the district court conducted an in camera hearing pursuant to § 28-321(2) on Sanchez' motion to offer evidence of A.S.' past sexual behavior. Sanchez offered the depositions of A.S. and her mother, taken October 10, 1997, and the deposition of Alliance police officer Craig Dvorak, taken September 17, 1997. The parties also stipulated that the last day of the 1996-97 school year in Alliance was June 4, 1997.

In her deposition, A.S. testified that she was asleep at Sanchez' home on New Year's Eve 1996 and was awakened by pelvic pain caused by Sanchez' penetrating her with his finger. She also testified that in June 1997, she was attending a drive-in movie with her 13 year-old boyfriend when her boyfriend briefly touched her vaginal area under her clothing but did not penetrate her. Dvorak testified that during his inital investigation, A.S. told him that her boyfriend had touched her crotch area over her clothing. A.S.' mother recalled that A.S. had mentioned to Dvorak that she resisted a boy's attempt to place his hand under her shirt and that she kissed him. In its pretrial order of May 4, 1998, the district court denied Sanchez' motion to present this evidence at trial.

3. Trial

A jury trial was held on April 27 and 28, 1998. A.S. testified that Sanchez was her godfather and that for a period of time, she visited the Sanchez home once or twice a week and spent the night almost every other week. When asked the specific date when the assault occurred, she replied, "I think it was New Year's but I'm not sure." She said that the assault occurred some time after her 13th birthday on December 21, 1996, but before she visited a doctor in February 1997. She stated that when the assault occurred, she was at the Sanchez residence watching television in a first-floor room. Katie Sanchez, Sanchez' wife at the time, and one of his three sons were watching television with A.S. for a time, but they then left. A.S. testified that she got bored and went to a second-floor room in the home where the other two Sanchez boys were asleep on a couch and Sanchez was sitting in a recliner watching television. She sat down on the right arm of the chair next to Sanchez and fell asleep.

A.S. testified that she was awakened by a sharp pain in her vaginal area. She then felt someone kissing her on the mouth, and when she opened her eyes, she saw that it was Sanchez. She also saw a part of his hand coming out of her shorts. A.S. told him to stop and then left the room and went back downstairs, where she fell asleep.

Sanchez made an offer of proof regarding A.S.' encounter with her boyfriend, which the court overruled based upon its finding that the evidence was irrelevant and inadmissible under § 28-321.

A pediatrician testified that he examined A.S. on February 24, 1997, because of A.S.' complaints of painful and frequent urination. He referred A.S. to a licensed nurse practitioner, who conducted a genital examination and diagnosed a vaginal yeast infection. She testified that A.S.' hymen was intact and stated that pressure on the hymen could cause pain. The pediatrician and the nurse practitioner both testified that the absence of physical injury does not rule out the occurrence of a sexual assault.

The State called Au.G. as a witness at trial. When the prosecutor began questioning her about her visit with Sanchez in Texas when she was 5 years old, Sanchez objected on the ground that the evidence was inadmissible under rule 404. The district court overruled the objection but gave the following limiting instruction before permitting Au.G. to testify:

Ladies and gentlemen of the jury, we are now going to hear some evidence that is being received for a specified limited purpose. Evidence of other crimes or acts is admitted for the limited purpose of showing that proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Such evidence is not admissible to prove the character of the defendant or that the defendant acted in conformity with that prior offense in the same offense that he is charged with in this court. The evidence that the defendant committed other crimes or acts

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